Court No. - 24
Case :- CRIMINAL REVISION No. - 2354 of 2018 Revisionist :- Rakesh Kumar Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Kartikeya Saran,Anand Bhaskar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Yashwant Varma,J.
1. Heard Shri Kartikeya Saran, learned counsel for the revisionist and the learned AGA.
2. This revision calls in question an order dated 5 May 2018 in terms of which the revisionist has been summoned by the court concerned by exercise of powers conferred under Section 319 Cr.P.C.
3. It is an admitted position that the revisionist was named in the FIR and the victim has consistently alleged that the act of rape was led by the revisionist. However, for reasons which are unclear from the record appended with the revision, the revisionist was not named in the charge sheet.
4. Learned counsel for the revisionist has essentially placed reliance upon the statement of certain other villagers recorded under Section 161 Cr.P.C to submit that he was not present in the village on the date of occurrence of the incident in question. According to the learned counsel, it is this circumstance which weighed with the police to not arraign the applicant in the charge sheet. In addition, he placed reliance on the decision rendered by the Supreme Court in Brijendra Singh & others Vs. State of Rajasthan1 to submit that in order for the provisions of Section 319 Cr.P.C. being pressed into aid, there must be some material before the Court which is over and above what may have been gathered at the stage of recordal of statements under Section 161 or 164 Cr.P.C. The thrust of the submission was that the mere statement of PW 1 would not justify the Court invoking the provisions of section 319 CrPC.
5. This Court however notes that PW1 has unequivocally ascribed to the revisionist the lead role in the questioned rape. This statement made during the course of investigation was reiterated before the Court concerned. On being queried with respect to the material on the basis of which the revisionist was not arraigned in the proceedings, learned counsel only relied upon the statement of certain individuals recorded during the course of investigation to establish that he was not present on the site at the time of commission of the crime.
6. The Court further notes that the court below has given due consideration to the statement of the victim and come to conclude that sufficient material existed and at least more than prima facie justifying the summoning of the applicant under Section 319 Cr.P.C. The Court also bears in mind that in cases of allegations of rape, the trial court while bearing in mind the pedestal of evidence which must be taken into consideration while exercising its powers under Section 319 1 2017 (7) SCC 706 Cr.P.C must necessarily place due reliance upon the statement of the victim as recorded before it unless there be contrary evidence of an overwhelming character which may detract from the veracity of the statement made before it.
7. The ratio of Brijendra Singh must be understood bearing in mind the factual backdrop in which it came to be rendered. In order to drive home this point it would be pertinent to extract the following passages from the said decision:
“14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 km. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 CrPC to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that the appellants' plea of alibi was correct.
15. This record was before the trial court. Notwithstanding the same, the trial court went by the depositions of the complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the “evidence” recorded during trial was nothing more than the statements which were already there under Section 161 CrPC recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where a plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty-bound to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the revision petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing the agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny.”
8. Brijendra Singh was rendered in the backdrop of a “plethora of evidence” which “clinchingly showed that the appellants plea of an alibi was correct.” That is not the factual scenario in the present case. Apart from the statements of certain individuals who placed the revisionist elsewhere, learned counsel did not invite the attention of the Court to any material or evidence which may have established or even indicated the absence of the revisionist from the scene on the date of the incident. In the absence of evidence which may have been characterised as overwhelming or inspiring confidence in justification of the action of the investigating authority not naming the revisionist, the Court below committed no illegality in invoking its powers. The statement of PW 1 clearly established the requirement of the revisionist being tried along with the other accused. This primarily in light of the unwavering testimony of PW 1. To have ignored it was clearly not permissible. One may usefully refer to the following observations as made by the Supreme Court in S. Mohammed Ispahani v. Yogendra Chandak2 35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge- sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.”
9. On an overall conspectus of the aforesaid facts, this Court finds no ground warranting interference with the order impugned. The revision is dismissed.
10. After the passing of the above order, learned counsel for the revisionist prayed that some interim protection may be accorded to the applicant in light of the fact that non-bailable warrants have been issued. Shri Saran states on instruction that the applicant shall appear before the court concerned on or before 13 August 2018 and till then no coercive action may be taken.
11. Accordingly and in light of the statement so made, it is provided that in case the applicant appears before the concerned Court and surrender on or before 13 August 2018, no coercive action shall be taken against him till then. In case the applicant applies for bail, the 2 (2017) 16 SCC 226 same shall be considered by the Court on its own merits bearing in mind the decisions rendered by this Court as well as the Supreme Court on the subject of grant of bail.
12. It is further clarified that in case the applicant fails to abide by the undertaking noted and recorded above, it shall be open to the concerned Court to take all measures as available in law against the applicant for ensuring him appearance before it.
Order Date: - 25.07.2018 (Yashwant Varma, J.) nethra